PESCO (WAPDA) through Chief Executive Officer FESCO (WA.PDA) Versus IRSHAD HUSSAIN SHAH

SYED ASGHAR HAIDER, J .--- This appeal is directed against the order dated 7-5-2007 passed by Punjab Labour Court-5, Sargodha. The backdrop of the controversy is that a charge-sheet was served upon the respondent for misconduct under Removal from Service (Special Powers) Ordinance, 2000 for fraudulently over-writing his date of birth as 15-8-1952 instead of 15-8-1947. After completing codal formalities, the respondent was awarded major penalty and compulsorily retired from service on the basis of these allegations. The order was challenged by the respondent before the Federal Service Tribunal but on account of judgment dated 27-6-2006 passed by the Honourable Supreme Court of Pakistan, the proceedings abated. Thereafter the respondent filed a grievance petition in the Labour Court, it was allowed. The impugned order of compulsory retirement from service was set aside and the respondent was reinstated in service with all back-benefits. Hence this appeal by the appellant.

2. The learned counsel for the appellant contended that disciplinary action as contemplated under Removal from Service (Special Powers) Ordinance, 2000, visualizes issuance of a show-cause, notice, containing statement of allegations, the formality was fulfilled and thereafter the respondent compulsorily retired from service, as the allegations levelled stood proved (that he had interpolated his service record and changed his date of birth). He availed the right of appeal as contained in section 10 of the Removal from Service (Special Powers) Ordinance, 2000. Therefore, it is clear that he could not make grievance before the Labour Court. To fortify his contentions the learned counsel relied on Muhammad Umar Lodhi, Deputy Manager Operation Cantt. Division, Multan v. Managing Director (Power) WAPDA, Lahore 2001 PLC (C.S.)

1. To further augment his view point the learned counsel contended that WAPDA Act, 1958 is applicable to FESCO and, therefore, the respondent is a civil servant and thus does not fall within the domain and jurisdiction of the Labour Court, the order in question is non-speaking and has not adverted to the preliminary objections raised, and lastly completely without jurisdiction.

3. The learned counsel for the respondent, conversely, argued that the respondent has been virtually condemned unheard. No inquiry as contemplated by law was ever initiated against him, he was not associated with the proceedings and was not given any opportunity to present his viewpoint, therefore, the entire proceedings are illegal. Even WAAPDA authorities resort to the procedure provided by Efficiency and Discipline Rules and hold a detailed inquiry, in the present matter, this principle was not adhered to. To fortify his contentions he relied on Zahoor Ahmed and others v. WAPDA and others 2001 SCMR 1566.

4. I have heard the learned counsel for the parties and perused the record.

5. It absolutely is clear and unambiguous that the respondent was virtually condemned unheard. No credible inquiry as contemplated by law was held against him, he was not associated with these proceedings at all therefore, the order passed against him for compulsory retirement is patently illegal and hence cannot sustain. Thus to this extent the impugned order, is unexceptionable.

6. However, as far as the precedent referred to by the learned counsel for the appellant viz. Muhammad Umar Lodhi, Deputy Manager Operation Cantt., Division, Multan v. Managing Director (Power) WAPDA, Lahore PLC 2001 (C.S.) 1 is concerned, it appears that the controversy in hand is similar and identical to the one as contained in the cited precedent. This Court has already declared that any person aggrieved under this enactment, has a right of redressal of his cause before the Service Tribunal. Therefore, the proceedings before the Labour Court were without jurisdiction and thus cannot sustain. This appeal is, therefore, allowed, however, as the respondent diligently pressed his remedy but before a wrong forum, thus he is awarded a period of thirty days from today, to raise grievance before the Service Tribunal, if he so desires, by initiating appropriate proceedings.

H.B.T./F-15/L Appeal allowed.